Section 161.002(b)(1) Requires No Best-Interest Finding | In re S.L.B. (2026)

In the Interest of S.L.B., M.S.B., and M.A.B., Jr., Children, 04-26-00329-CV, October 30, 2026.

On appeal from 131st Judicial District Court, Bexar County, Texas

Synopsis

Texas Family Code § 161.002(b)(1) provides an independent basis for terminating an alleged father’s parental rights when he fails to file an admission of paternity or a counterclaim for paternity. Unlike termination under § 161.001, termination on that ground does not require a best-interest finding, and an appellant who fails to challenge the § 161.002(b)(1) ground cannot obtain reversal by attacking only best interest.

Relevance to Family Law

The immediate application is to termination and SAPCR proceedings involving an alleged father whose parentage has not been legally established. The decision also matters in divorce and custody litigation because paternity status determines standing to seek conservatorship, possession, and other parental relief; counsel should not assume that testimony, participation in services, or informal acknowledgment substitutes for the pleadings necessary to preserve parental claims.

Although the case does not directly govern property division, parentage can affect the structure of a divorce or SAPCR, the identity of necessary parties, child-support exposure, reimbursement disputes, and access to genetic testing. More broadly, the opinion reinforces a recurring appellate principle across family-law cases: when a judgment rests on an independent ground, the appellant must challenge that ground directly or the appellate court may affirm without reaching otherwise substantial complaints.

Case Summary

Fact Summary

The Department became involved after receiving allegations of domestic violence and substance abuse in the children’s home. It provided family-based safety services for nearly two years before removal. During that period, Father did not complete domestic-violence classes, repeatedly tested positive for methamphetamine, failed to complete outpatient drug treatment, declined inpatient treatment, and later became incarcerated. Mother also failed to comply with the safety plan and could not maintain a safe placement for the children.

The Department filed its petition on April 21, 2025, seeking removal and, if reunification could not be achieved, termination of the parents’ rights. Following a two-day bench trial, the trial court terminated Father’s rights to all three children.

As to the youngest child, M.A.B., the trial court relied on Texas Family Code § 161.002(b)(1), finding that Father had failed to legitimate his paternity by filing an admission of paternity or a counterclaim for paternity after service. As to the two older children—and alternatively as to M.A.B.—the court found predicate grounds under § 161.001(b)(1)(D), (E), and (O). The trial court also made a best-interest finding.

Father’s appellate brief raised only one issue: whether the evidence was legally and factually sufficient to establish that termination was in the children’s best interests. He did not challenge the trial court’s § 161.002(b)(1) finding concerning M.A.B.

The record contained an important procedural wrinkle. Father testified at trial that he was M.A.B.’s father. Under San Antonio precedent, an alleged father’s appearance and admission at trial may trigger the right to require proof of a § 161.001 predicate ground and best interest. Nevertheless, Father did not assign error to the trial court’s failure-to-legitimate finding or otherwise challenge § 161.002(b)(1) on appeal.

Issues Decided

• Whether termination under Texas Family Code § 161.002(b)(1) requires proof that termination is in the child’s best interest.
• Whether Father’s challenge to the best-interest finding placed the independent § 161.002(b)(1) ground before the appellate court.
• Whether the termination order concerning M.A.B. could be affirmed when Father failed to challenge every independent ground supporting that order.

Rules Applied

Texas Family Code § 161.001(b) generally requires clear and convincing evidence of both a predicate statutory ground under § 161.001(b)(1) and that termination is in the child’s best interest under § 161.001(b)(2).

Section 161.002(b)(1), however, separately authorizes termination of an alleged father’s rights if, after being served with citation, he does not timely respond by filing an admission of paternity or a counterclaim for paternity under Chapter 160.

In In re S.J.R.-Z., 537 S.W.3d 677, 682–83 (Tex. App.—San Antonio 2017, pet. denied), the Fourth Court held that failure to assert or acknowledge paternity under § 161.002(b)(1) is an independent basis for termination that does not require a best-interest finding. The court also relied on decisions explaining that § 161.002(b)(1) does not require proof of one of the conduct-based grounds listed in § 161.001(b)(1).

The court applied the independent-ground briefing rule: an appellant must challenge every independent ground that fully supports the judgment. If an appellant leaves one such ground unchallenged, the appellate court accepts that ground’s validity and may affirm without reviewing challenges directed only to alternative grounds.

The court also acknowledged In re M.J.M.G., 543 S.W.3d 862, 864 (Tex. App.—San Antonio 2017, no pet.), under which an alleged father who appears at trial and admits paternity may trigger the right to require proof of a § 161.001 ground and best interest. That principle did not cure Father’s failure to challenge the trial court’s § 161.002(b)(1) finding on appeal.

Application

The trial court’s best-interest finding concerning M.A.B. was an alternative basis for its ruling. Its primary basis was Father’s failure to legitimate his paternity under § 161.002(b)(1). Because that statutory ground independently supported termination and did not itself require a best-interest finding, Father’s sole appellate complaint did not attack the dispositive basis for the judgment.

Father’s trial testimony that he was M.A.B.’s father added complexity but did not change the appellate result. His testimony may have triggered protections recognized in M.J.M.G., including the right to require proof of a predicate ground and best interest. But preserving a position in the trial court and presenting a challenge on appeal are separate matters. Father’s appellate issue addressed only best interest; it did not contend that § 161.002(b)(1) was inapplicable, unsupported, or displaced by his trial admission.

The Fourth Court therefore treated the failure-to-legitimate finding as unchallenged. Once that independent ground remained intact, a successful attack on the alternative best-interest finding could not produce reversal as to M.A.B.

Holding

Termination under Texas Family Code § 161.002(b)(1) is an independent statutory basis that does not require proof that termination is in the child’s best interest. The two-part predicate-ground-and-best-interest framework applicable to § 161.001 does not govern a termination resting solely on § 161.002(b)(1).

Because Father challenged only best interest and did not challenge the failure-to-legitimate finding, he failed to attack every independent basis supporting termination of his rights to M.A.B. The Fourth Court accepted the unchallenged ground as valid and affirmed the termination order.

Practical Application

For counsel representing an alleged father, the safest practice is to address parentage immediately and formally. Do not rely on the client’s participation in the case, visitation, completion of services, oral statements, or trial testimony. File a written admission of paternity or an appropriate Chapter 160 counterclaim, and obtain a ruling establishing parentage when necessary.

For the Department, guardian ad litem, or petitioner, § 161.002(b)(1) should be evaluated independently from § 161.001. The pleadings, service record, parentage filings, and alleged father’s procedural status must support the specific statutory path being pursued. Counsel should also anticipate arguments that an appearance or in-court admission triggered the protections discussed in M.J.M.G.

For appellate counsel, the notice of appeal is not enough. The brief must challenge each statutory ground or independent legal theory that can sustain the judgment. A best-interest issue does not automatically encompass § 161.002(b)(1), and a challenge to § 161.001 grounds does not necessarily reach a separate parentage-based ground.

In divorce or custody litigation, counsel should determine at intake whether the client is a presumed, acknowledged, adjudicated, or alleged father. If parentage is disputed or incomplete, plead it affirmatively rather than allowing the case to proceed on assumptions. The client’s status may control standing, conservatorship rights, support obligations, and the relief available at temporary orders and final trial.

Checklists

Representing an Alleged Father

• Determine whether the client is a presumed, acknowledged, adjudicated, or alleged father under Chapter 160.
• Review the petition to determine whether termination is sought under § 161.002(b)(1).
• Confirm the date, method, and legal sufficiency of service.
• File a written admission of paternity when appropriate.
• File a counterclaim to adjudicate parentage under Chapter 160 when appropriate.
• Request genetic testing promptly if parentage is disputed.
• Obtain a written ruling adjudicating parentage rather than relying solely on oral testimony.
• Preserve any argument that an appearance and admission triggered the protections recognized in In re M.J.M.G.
• Address every termination ground in motions, trial objections, requests for findings, and post-judgment filings.
• Ensure the appellate brief separately challenges § 161.002(b)(1) if the final order relies on it.

Prosecuting a Section 161.002(b)(1) Ground

• Plead § 161.002(b)(1) expressly.
• Establish that the respondent remained an alleged father when the relevant statutory requirements applied.
• Place proof of service and citation in the record.
• Confirm whether an admission of paternity or Chapter 160 counterclaim was filed.
• Review all pleadings for language that could constitute an admission of paternity.
• Determine whether the alleged father appeared and admitted paternity at trial.
• Address In re M.J.M.G. if an in-court acknowledgment occurred.
• Request findings that distinguish § 161.002(b)(1) from alternative § 161.001 grounds.
• Draft the final order so that each independent ground is clearly identified.
• Preserve alternative predicate-ground and best-interest findings when supported by the evidence.

Preparing the Termination Appeal

• List every ground stated in the final termination order.
• Separate § 161.001 grounds from any independent § 161.002(b)(1) ground.
• Challenge every ground capable of independently sustaining the judgment.
• Do not assume a best-interest challenge reaches a failure-to-legitimate finding.
• Brief the effect of any written admission, counterclaim, appearance, or trial testimony acknowledging paternity.
• Address error preservation and appellate briefing waiver separately.
• Include record citations showing when and how paternity was asserted.
• Analyze whether the alleged father’s procedural status changed during the case.
• Request appropriate relief directed to each child and each termination ground.
• Review the brief for omitted independent grounds before filing.

Managing Parentage in Divorce and SAPCR Litigation

• Identify all possible presumptions of paternity at the outset.
• Determine whether another man must be joined or given notice.
• Plead parentage affirmatively if legal status is uncertain.
• Evaluate applicable limitations periods and statutory deadlines.
• Request genetic testing before parentage assumptions affect temporary orders.
• Distinguish biological paternity from legally established parentage.
• Obtain express findings concerning parentage, standing, conservatorship, and support.
• Consider how parentage affects child support, medical support, possession, inheritance, and related financial claims.
• Preserve parentage rulings independently from custody and best-interest issues.

Citation

In re S.L.B., M.S.B., and M.A.B., Jr., No. 04-26-00329-CV (Tex. App.—San Antonio Oct. 30, 2026, no pet. h.) (mem. op.).

Full Opinion

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